Salt Lake evening Democrat. [volume] (Salt Lake City, Utah) 1885-1887, 1887-04-07
GARLAND ON THE OATH.
The Attorney General Renders an
Opinion Relative 20 Section "a
of the New Law.
He Decides That Officers Already In
Commission Need Not Take
The Oath.
The Rule Applies to Federal Officials
A Chance for the City Council
to Kick Itself.


discussion as to the scope of the
oath REQUIRED by Section "a of that act,
and the result has been that most of the
office-holders in the Territory have SUBJ
scribed to the oath, while on the other
hand, few have declined to do 30.
Hon. A. B. Carlton, Chairman of the
Utah Commission, was of the opinion
! that this was not necessary for persons
holding office prior to the passage of the
measure, and he therefore united with
Governor West in a letter, asking
through the Interior Department for the
| opinion of the Attorney-G General on the
points mentioned below. Following is
| the answer he received:
DEPARTMENT OF THE INTERIOR,
\ WASHINGTON, April LIST. 1887.
Hon. 4. B. Carlton, Chairman Utah
Commission, Salt Lake City:-SR: have
the honor to enclose herewith COPY of an
opinion Of the Attorney General, dated the
| 3lst ultino, upon certain questions arising
under Section "a, Act of March 3, 1887, sub
mitted to him by this Department in pur-
suance of the request contained in your
letter of the 18th ultimo.
Very respectfully,
81. l.. MULDRow, Acting Secretary.
THE OPINION.
DEPARTMENT OF JUSTICE,
WASHINGTON, March 81, 1887.
The Secretary of the Interior:--Su: 1
have considered your communication of the
18th of March, 1887, and the accompanying
letter, therein referred to, from the Chair
man of the Utah Commission and the Gov
ernor of the Territory of Utah, presenting
for an opinion certain questions arising
upon the oath section of the act entitled
"An act to amend, an act to amend Section
1902 of the Revised Statutes of the United
States, in reference to bigamy and for other
| purposes, approved March 22d, 1882"
The first question asked is care the Off
GERS in this Territory (Utah), who were
commissioned and holding Office prior to
the passage of said Act, required to take
said oathP meaning the oath prescribed
by the said oath section.
In my opinion this question should be
answered in the negative. 1t is true the
law declares the oath required, to be "a
condition precedent to the right to hold
Office in or under said Territory" words
which of themselves, in my opinion have
strong tendency to show that it was Off
GERS thereafter to be elected or appointed
who were in the mind of Congress.
If it was intended that the law should af-
feet officers in commission when it went in
to operation it is hard to understand why
contingency of failure or refusal to take
and subscribe the required oath, such as by
declaring the recusant's Office vacant and
| the manner in which the vacancy should be
filled. Furthermore, if Congress had in
tended the oath requirement to apply to
officers already in commission, we must pre-
sumo it would have provided either that the
law should not 90 into effect until time
within which it could be made known in all
the Territories, or that the oath should be
taken and subscribed within certain time
after the law went into force, thus prevent
ing the serious doubts that might arise as
to the validity of official acts performed af-
ter the statute took effect but before its
provisions could be known by the COM
munities affected by them, if it should be
held that the oath requirement applied to
officers in commission when the act became
operative.
Now, this failure of Congress to guard its
legislation with respect to the official OATH
in some such way as has been pointed out,
and the express provision, already adverted
! to, that the oath shall be taken before the
officer "enterS upon the duties of his Office"
and the consideration that the officers in
commission when the act went into force
had been holding Office under the act of the
| 22d of March, 1882 (22 Stat, BOZ, which
contained a provision that no bigamist,
polygamist or person cohabiting with more
| than one woman, and that no
woman oohabiting with any such
person in any Territory or other
! piece under the exclusive jurisdiction of the
| United States should be entitled to vote or
be eligible for, or entitled to hold, any Office
of honor, trust or emoIument in such Terri
! tory or under the United States-all 90 to
show that, in absence of language compell-
ing such a sense it would be unreasonable
to attribute to Congress the intention to
II r.
existing officers without any adequate reason
for resorting to a mode of legislation which
is never regarded with favor.
When the Act of 1887 was passed there
was not the same state of things in the Ter
ritories as existed when the Act of 1882 was
passed, state of things which made it
necessary to put in the latter Act q provis-
ion vaoatinR all registration and election
offices. On the contrary, the Act of 1882
had been in force within less than month
of five years when the new law was passed,
and it was but fair to assume that persons,
having the qualifications to hold office re-
quired by the Act of 1882 and in Office under
that Act, when the new Act of 1887 went
into operation, were in sympathy with that
Act, and could be relied on to carry out its
provisions.
1t is clear then, to my mind, that would
be doing violence to this law, as we'll as
shaking public faith in various official pro-
oeedings if 1 held it to have retroactive
operation.
The second question is, eff such officers
In this Territory (Utah) are required to
take the oath, what would be the conse-
quence of their failure to comply with the
requirement."
The answer to the first question renders
an answer to this question unnecessary.
The third question is, "Are the Federal
ofioe-holders, as the Governor, Utah Com
missioners, Secretary of the Territory, etc.,
to take the oath?'
The law Is. "a makes the oath "a condi-
ton precedent to the right to hold Office
IN or under said Territory" and, in my
my opinion, applies as we'll to the officers
referred to, who were thereafter to be ap-
pointed by the United States to offices in
the Territory as to the Offices holding under
and by appointment, This meaning is called
for by the use of the particles Gin" and
under" in the law: the former being under
stood to refer to officers appointed by the
United States to perform duties in a Terri
tory, and the latter to officers appointed by
a Territorial government itself.
The distinctive particle "as'' that comes
between the two words SIM and "under" as
well as a known rule of Interpretation re-
quires that each of these words should have
its proper force. This have endeavored to
give it.
Ihave the honor to be, Sir,
Your obedient servant,
A. II. GARLAND,
Attorney General.